By Arun Shourie
It isn’t just that they are perfidious. They are fools.
The government thought it would be very clever, that it would enact a law under which what the press wrote or the citizen said would be defamatory, but a law under which whatever the govern it itself said would by definition be no defamatory,
These are the twin purposes it aimed at achieving by Sections 11(f) and (13) of The Defamation Bill, 1988. By section 11(f) “any notice or other matter issued for the information of the public by or on behalf of government or a local authority” is by definition non-defamatory, it is not actionable. Notice the words “any notice or other matter” that is any and every calumny the CBI or any part of the government chooses to disseminate is exempt from prosecution so long as it is on one of their letterheads. AIR and Door Darshan, and of course the friendly newspapers are exempt from action so long as they attribute the calumny to the official handout.
On the other hand the press and every citizen is muzzled by Section 13 which makes it an offence to fail to prove conclusively any imputation that someone has done something contrary to “any law for the time being in force” or to say that he has omitted to do anything under it. Thus, you cannot say not even as the Bill puts it “in the form of any alternative or expressed ironically” anything that anyone in the “trade, business, profession, calling or office” of a person, indeed anyone, may think implies that the person has done something contrary to any law in existence, for instance dare I say it? The Prevention of Corruption Act. It will be a crime now to utter even the commonplace, “Politicians are corrupt” to say nothing of saying “leading politicians of the Congress I are corrupt.” For under Section 3 of the Bill you are as liable to be prosecuted for saying something against “a company” (e.g. Reliance), “an association” (e.g. Congress I), ‘‘a collection of persons” (e.g., “politicians” or “leading members of…”) as against an individual. Therefore unless you can establish conclusively in the course of a trial day to day, in camera something that may be conducted “in a summary way” by a sessions judge in effect of the government’s choosing that your assertion was true you’ll be in jail.
So extreme is Section 13 that even if you reproduce what has been said in the legislature of a foreign country, an international Organisation, a court in any foreign country, a commission, tribunal or committee even if you do no more than reproduce accurately an averment in any of these forums to the effect that X or Y has violated a law or failed to do what the law required him to do you are liable for prosecution. For instance if you merely reproduce the report of Amnesty International to the effect that the police in Punjab have tortured someone, you’d be putting yourself up for prosecution. And you will put yourself just as certainly for prosecution if you report a statement made in, say, the Swedish, German, or British Parliament, a Swiss court that such and such Indian has collected money from Bofors, from HDW, from Westland. So, you see how diligent they have been. But I am on the disparity introduced by Sections 11(f) and 13.
Thus, it will be defamatory for the Indian Express to say without conclusive proof, for instance, that Ajitabh Bachchan has purchased a flat in Switzerland in violation of FERA but it will be perfectly in order for the government to say without any basis whatsoever and broadcast as many time as it wants over Doordarshan and AIR, that the Indian Express has violated FERA or any other law in one transaction or another.
A delicious mistake
That is the effect, the double standard the rulers sought to create. But, ah! the delicious mistake… and wilderness is paradise enow!
Section 11(f) by which the government has sought to exempt its calumnies is in Chapter IT of the Bill.
Section 13 by which it has sought to silence us is in Chapter III.
But notice how Chapter III and Section 13 begin:
“NOTWITHSTANDING ANYTHING CONTAINED IN CHAPTER II OF THIS ACT
Whoever, by words either spoken or intended to be read or by sign or by visible representations, makes or publishes any imputation falsely. Alleging…” commits the offence of Defamation.
“NOTWITHSTANDING ANY THING CONTAINED IN CHAPTER Il OF THIS ACT…”
But Section 11(f) is contained in Chapter II of the Act!!!
Hence the exemption of the government by the government for the government is knocked out.
Every handout of the government alleging that you and I have committed an offence is just as actionable as what you and I say. And every newspaper, and Doordarshan and AIR are just as liable for prosecution for printing an allegation contained in the government’s handouts as in reproducing your handouts and mine!
What a delicious mistake! Everyone who is raided and is the butt of the CBI’s calumnies “concealed wealth found” “incriminating documents found” every Ameeta Modi, every Indu Arora can at long last file a case against the CBI, the government, Doordarshan, AJR and against their officers personally.
And unless AIR and Doordarshan broadcast, unless the papers friendly to them publish any reply that every one of these victims chooses to send “in the same manner and with the same prominence” as they did the official calumny. “THE COURT SHALL NOT DISPENSE WITH HIS PERSONAL ATTENDANCE” i.e, the Court will have to ensure that the Director and SPs of CBI, the Directors General of Doordarshan and AIR and each of the friendly editors has to be personally present in the Court for the trial! And remember the trial has to be held DAY TO DAY!!And each of them can drag all of them to a court anywhere in the country and keep them pinned down every day for three month
With the all-important immunity out what will they do now? Claim that the words are no mistake, that they just prove that the government is even handed, that the government put them there: only because it wanted to discipline its own officers as much as the press? But who will’ believe that of this government? Amend the Bill? And won’t the government look wonderful reintroducing the Bill to amend it within four days of ramming it through the Lok Sabha!
As I was saying, have faith in Rajiv. He is the only leader of the Opposition today.